It was a murder trial occurring in Atlanta, Georgia but covered around the nation. Claud Tex McIver, a successful, now retired, former lawyer with the Atlanta based firm Fisher Phillips, and member of the advisory committee of the American Bar Association‘s Standing Committee on Gun Violence, charged with deliberately killing his wife, Diane. The event, all agreed, occurred September 25, 2016 while the power couple were being driven back to their condominium by Diane’s best friend with Diane sitting in the front seat next to her friend and her husband seated behind her in the couple’s SUV. Mrs. McIver was shot in the back with a .38 caliber Smith and Wesson, by her husband who claimed he was falling asleep when the gun accidentally discharged going over a bump. Mrs. McIver, during a death bed conversation with Dr. Susanne Hardy at the emergency department of the Emory University Medical Center, told her attending physician the shooting was an accident. Yet, when asked if she wanted to see her husband she demurred.
The prosecution’s persistent belief was that the prominent attorney intentionally shot the successful 64 year old business woman because of money woes. The fact Mrs. McIver had changed her Will, leaving the couple’s ranch to a godson shortly before the incident, seemed to buttress the belief. The trial of the matter took approximately seven weeks. The jury took 29 hours to come back in with a verdict. I am not in a position to comment too much about the verdict reached as I didn’t watch but scant portions of the trial. From everything I have read, and the observations of many who did follow the matter from gavel to gavel, there have been numerous expressions of surprise (and some outrage) at the verdict the jury returned. Yes, there are people who believe the jury failed to return a just verdict; but there are quite a few who are rejoicing at this big wig’s horrific downfall and considerable misfortune. I can not rejoice in another’s misery; but, then again, that is just I; and I am a different breed of cat.
I don’t know whether Tex McIver intentionally pulled the trigger which killed his wife; or if, as the jury finally found, he intended to subject her to an aggravated assault which resulted in her death. I know the latter appears to be what this jury ultimately settled on as the foundational basis of its guilty return on the felony murder count of the indictment. I know that Diane McIver believes her being shot by her husband was an accident, or that’s what she took on her lips to meet her maker. There is something about the verdict and the way at which it was arrived that is very troubling to me. I don’t believe the true verdict of the jury was reported in the courtroom today. I believe what was reported by the jury was the result of certain concessions between jurors being made out of either convenience or exhaustion. I believe the judge who presided over these proceedings inappropriately impacted the return.
In reviewing several news reports in preparation for this particular editorial, I am struck by the fact that Mike Petchenik (@MPetchenikWSB) reported…the decision came hours after the jury said they were deadlocked. They told the judge they could not come to a unanimous decision on four of the five charges. The judge sent them back around 2 p.m.,telling the jurors to keep deliberating. They returned 2 hours later with a guilty verdict… What is troubling about that is the judge refusing to declare a mistrial in the face of a jury informing him of their being deadlocked. As someone who formerly practiced law and tried over 200 criminal jury trials to verdict himself, there is a reason that concerns me. You see, any jury I have ever encountered who was sent the message their service could not conclude without its reaching a verdict has always, in my experience, come back in with a verdict adverse to the defense. For some reason, the jurors willing to reverse their opinions never seem to be the jurors convinced of guilt but always either the jurors holding out for acquittal or the jurors unsure if the case has been proven in accordance with the requisite standard of proof. Jurors siding with the government seem to always remain steadfast, it’s the ones opposing the government’s stated desire who always seem to relent if enough pressure is applied. I believe it unseemly for the pressure to return a verdict being applied by the one sitting the bench and presiding over the trial.
This phenomenon on which I have remarked is not unknown in criminal defense circles either. A similar situation occurred in a murder trial tried in New York years ago. The story regarding the case I am referencing is linked here for your easy reference. In that case the jury had likewise informed the judge of its being deadlocked only to be instructed to return to the deliberation room and not to re-emerge with anything short of a consensus. Peter Mitchell, an attorney practicing criminal defense in New York’s Legal Aid Society noted, in that case, that there [were] multiple risks about such a practice. You worry that jurors who have an opinion are going to give in to the others out of convenience or sheer exhaustion. And if they bring back a guilty verdict, I would be worried, if I were the prosecution, that an appellate court is going to simply reverse that in short order. It doesn’t appear the Atlanta, Georgia prosecutor is similarly concerned.
In the end we have a lovely, successful, and well-liked woman who died before it was her time. This certainly is a tragedy for the family she left behind, together with her friends and associates who will forever be without her society. We also have a man who enjoyed prestige, professional attainment, and a fine reputation both professionally and personally. A man who had, over a lifetime, attained distinction and respect from a legal community in one of the South’s largest urban sprawls. Barring a reversal by the Court of Criminal Appeals in Georgia, Tex McIver will spend the rest of his life disgraced and imprisoned. He has lost everything; his wife, his freedom, his good name and reputation, the good-will of family, friends, colleagues, and associates. He said it was an accident. She told the physician attending her on her death bed it was an accident. The jury told the judge, just two hours before it returned the verdict the judge seemed intent on being returned, that it couldn’t decide beyond a reasonable doubt what happened or whether Tex McIver should be criminally culpable. I don’t know whether he is or isn’t guilty, but how can it be doubted the jury had some reason to doubt his culpability based on the 29 hours it had been deliberating, if for no other reason?
As for Judge McBurney, and the requirement he preside over the proceedings impartially, news reports indicate he chuckled when he looked at the foreman’s verdict form reporting the jury’s return of Guilty. I don’t know how any of this is funny, regardless of what verdict you thought appropriate. I don’t see how the way in which this jury returned a verdict was the least bit just. Maybe you disagree, which you are certainly free to do. You, unlike Tex McIver, are free to do a lot of things. Take it for what it’s worth, because…
THAT’S THE LONG VERSION!
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